“Upon ascending to the presidency,” wrote Levin, “[Franklin] Roosevelt erected an autocratic program to overcome the transience of Statist electoral victories and interrupted rule.” Conservatives could win elections, but they could never roll back the state that FDR, then LBJ, then Barack Obama had expanded. “The repercussions were never in doubt and are now ever more tangible, with a definite upshot—devouring the civil society and subsuming individual sovereignty. This is precisely why the Framers provided in Article V a backstop to restore constitutional republicanism.”
And Levin knew what the Framers would have wanted. He proposed 10 amendments, starting with 12-year term limits for members of Congress and Supreme Court judges. Unpopular Supreme Court decisions could be overridden by a three-fifths congressional vote, “not subject to a presidential veto.” The 17th Amendment would be abolished, letting state legislatures once again elect the Senate. (If that happened today, the Senate would be snapped up immediately by Republicans.) If 34 states chose to, they could override any federal statutes or regulations “exceeding an economic burden of $100 million.”
None of this could pass the 113th Congress. None of this had really been proposed when Republicans ran the federal government. That was Levin’s whole point. “America is blue state right now,” he told the crowd of social conservatives who gathered for this year’s Values Voter Summit. “The only way to address this is to find 34 state legislatures, and to take the time to do it. It took us a century to get here and so it may take us 20 or 30 years to get out of this. But we have no options. This is the only option. I don’t care if no senator or no member of Congress supports this. We bypass them.”
Without Levin, far fewer conservatives would be tingling at the mention of “Article V.” The legislators who met in Mount Vernon had their qualms with giving Levin credit. “He called me up to have me on his show,” said Kapenga. “That was a little frustrating, because I saw a couple of people saying this was inspired by Levin’s book. This was planned before the book! All of a sudden, people say, ‘Oh, these guys must have read The Liberty Amendments.’ But this is a nonpartisan idea. Prof. Lawrence Lessig, who definitely doesn’t agree with Mark Levin, has said that we’re doing something that makes sense.”
That’s true. There are progressive-minded legal thinkers who like the idea of states blowing past the unmanageable Congress. “Relying on ALEC will assure that the specific proposals will be untenably right-wing,” said University of Texas law professor Sandy Levinson. “But, of course, that doesn’t guarantee they’ll get to the magic number of 34, let alone the further magic number of 38 actually to amend the Constitution.” Some good-government reform, like multiple-member House districts, would combat gerrymandering in a way that cut against Republicans.
“It’s impossible to imagine that the House of Representatives would adopt such a proposal,” said Levinson, referring to the notion of multiple-member seats. “But one can imagine that it could get to 38. There would be no reason for the 19 states with four or fewer representatives particularly to care, and one could imagine that another 19 states would see this as a way to diminish the reapportionment wars.”
But conservatives wouldn’t be clamoring for Article V if they thought a convention would produce victories for the left. They’ve got a head start on this; they’re thinking of how to build a movement that runs around Congress to restore the “Constitution in exile.” The convention, if it happened some years from now, needs to happen on their terms. Not that they’re going to shout that from the mountaintop.
“This is something that our members were interested in,” ALEC spokeswoman Molly Fuhs explained when asked about the Article V panel. “We do not advocate for anything.”